False LinkedIn Profile Leads to Trademark Claim

And I thought the legal business was cut throat. Apparently, the software industry is not only brutally competitive, it’s kind of creative.

In a case pending in a Virginia federal court, a software development company called Avepoint alleges that a competitor called Axceler took the concept of competition a little too far. According to Avepoint, Axceler engaged in a plan to discredit Avepoint by leading consumers to believe Avepoint is a Chinese company and its products are manufactured, developed and supported there. None of that is true. Avepoint is a U.S. company and its work is done here.

Here’s the creative part. As part of its plan, Axceler apparently created a LinkedIn profile for a fictious Avepoint software engineer named Jim Chung. According to his profile, Mr. Chung worked in Xinjiang, China. The LinkedIn profile encouraged viewers to contact the fictional Mr. Chung for “business deals,” “new ventures,” and “consulting offers.” According to the lawsuit, Michael Burns, an Axceler employee, tweeted frequently about Chung. Burns sent out one tweet from a conference in Las Vegas that said: “Just ran into jim chung from avePoint good guy.” No indication if Burns also spent time with Manti Teo’s girlfriend.

Avepoint filed a multi-count complaint against Axceler and Burns. Included in the complaint is a count for trademark infringement arising from the phony LinkedIn account. Axceler used Avepoint’s trademark name in the LinkedIn profile, and in Avepoint’s view, for the purpose of misleading the consuming public.

Axceler moved to dismiss the complaint, contending that the LinkedIn profile was not a “use in commerce.” According to their motion, the profile wasn’t an effort to sell a product or service. The court was unimpressed. It noted that “LinkedIn is a website commonly used for advertising and promotion in the software industry.”

Avepoint’s complaint alleged that Axceler was using the Avepoint mark to attract consumers to the LinkedIn Profile and to cause competitive harm. Those allegations were good enough to withstand the motion to dismiss.

The point? If you engineer a truly sleazy plan to “promote” your product at the expense of a competitor, don’t expect to get off on a technicality.